Many employers and HR professionals are unclear about the legal status of cut scores used to make employment decisions. It is my experience that many have unfounded beliefs about the defensibility of cut scores. The purpose of this article is to briefly debunk four of these myths by summarizing court decisions across four decades of Title VII employment discrimination cases.

Title VII of the 1964 Civil Rights Act, as amended by the Civil Rights Act of 1991, establishes that employment selection procedures causing adverse impact against protected group members are unlawful if they are not shown to be "job related...and consistent with business...necessity." Because Title VII does not explicitly address cut scores except to say that different cut scores may not be used for different protected groups, we must distill the legal guidance from a myriad of court decisions.

Myth 1: The "business necessity" requirement means that a cut score must represent a "minimum qualification" level.

The "business necessity" requirement described in Title VII has not been defined by the U.S. Supreme Court. Different lower courts have interpreted it differently. While some courts have adopted the view that cut scores must represent "minimum qualifications," others have explicitly supported cut scores set at relatively high levels. No general standard has emerged on this point. It does appear that courts may be more likely to adopt a "minimum qualifications" view when the job in question is relatively simple and a large percentage of applicants are likely to be capable of acceptable performance. Also, in licensure cases tried under Title VII, courts virtually always adopt the "minimum qualification" standard implicit in the generally accepted "avoid harm" principle. This principle establishes that the role of the state in licensing service providers is to ensure that the competence of licensees is sufficient to "avoid harm" to the public. This principle is generally viewed as a "minimum qualifications" standard.

Myth 2: Cut scores should not set standards higher than would be met by any incumbents.

In many cases, courts have accepted cut scores that set higher standards than would be met by people currently holding the job. Usually the courts require some showing that the employer has a bona fide interest in raising the level of performance above the current level and/or that some incumbents are performing below some reasonable standard of success.

Myth 3: Cut scores are difficult to defend because they are arbitrary.

"Arbitrary" can have two meanings. The first meaning is that the cut score was established without any reasonable rationale showing its relevance to some important business value. This meaning of "arbitrary," that the cut score is irrelevant to its intended use, violates both professional and legal standards for cut scores and would, indeed, make for a difficult defense. On the other hand, some use "arbitrary" to mean that there is very little difference between the particular cut score being used and other possible values just below or above it. Although this observation is generally true, courts have not used this feature of cut scores as a criticism of their defensibility. Courts are generally accepting of the underlying principle of a threshold standard. Usually, courts are interested in the reasonableness of the rationale for the particular cut score in question. Even though they may also evaluate the reasonableness of nearby alternative cut scores, they appear to accept the fundamental reality of employment selection that whether cut scores are used or not, many selection decisions will be made between very similarly qualified candidates.

Myth 4: Cut scores may be chosen based only on a consideration of work behavior.

In many cases courts have upheld cut scores that were selected based on a number of considerations in addition to the work behavior of interest. For example, courts have accepted cut scores that were adjusted up or down to take into consideration factors such as the cost of employment, the unreliability of the assessment on which the score is set, and the availability of qualified candidates in the local employment market. Where the employer makes such tradeoffs, courts like to see the involvement of professional experts. Ironically, perhaps, courts have not been as accepting of cut scores that were substantially lowered post hoc solely for the purpose of avoiding adverse impact.

In general, courts have not relied on a uniform set of specific requirements or conditions when judging the lawfulness of cut scores. Rather, particular circumstances such as the nature of the job in question, the employer's response to the problem, the public's interest (if any), the particular contested action, and the degree of harm all can influence the court's decision. Perhaps the most common theme running through these four decades of decisions is that courts require a reasonable rationale linked to some important, bona fide business value as the basis for a successful defense of a cut score.